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Category Archives: Scotland

On 9 March 2018, the Domestic Abuse (Scotland) Bill, which we covered in our 12 February 2018 blog, became an Act of the Scottish Parliament upon the grant of Royal Assent. Its provisions will be brought into force at a later date by Scottish ministerial regulations. Continue reading →

Previously, we have highlighted the Act’s retrospective effect in allowing claims arising from childhood abuse which happened after 26 September 1964 to be litigated without any time-bar impediment.

It is also worth emphasising the Act’s prospective application. Childhood abuse, which may be happening now or at any time in the future as well as after 1964, could give rise to litigation without any time-bar hurdle for the claimant to overcome, not only now but for all time coming. That should be borne in mind in the context of record-keeping, going forward, as well as to date.

Scottish Ministers have set 4 October 2017 as the appointed day on which the Limitation (Childhood Abuse) (Scotland) Act will come into force.

From 4 October, the three year limitation rule will be abolished, with retrospective effect, in respect of injury cases, whether physical, psychological or both, arising from childhood abuse. The Act will apply if the abuse started before a person reached the age of 18. Abuse is widely defined, on a non-exhaustive basis, as including sexual abuse, physical abuse, emotional abuse and abuse which takes the form of neglect. The onus will remain on the claimant to establish, on the balance of probabilities, a causative link between the abuse and the injury.

Safeguards are provided in the Act for defenders, in their entitlement to a “fair hearing” and to consideration of whether they will suffer “substantial prejudice” if the case proceeds, sufficient to outweigh the claimant’s interest.

On 28 July 2017, the Bill to retrospectively abolish limitation in cases of childhood abuse received Royal Assent. The Limitation (Childhood Abuse) (Scotland) Act 2017 is now, therefore, on the statute book.

The grant of Royal Assent does not, though, bring the provisions of the Act into force. Subsequent regulations by Scottish Ministers will do that. Present indications suggest that those may be produced this Autumn.

The third and final legislative stage of the Bill to retrospectively abolish limitation for cases of personal injury arising from childhood abuse took place in the Chamber of the Scottish Parliament on 22 June 2017.

A proposed amendment to require Scottish Ministers to prepare a financial report on the likely impact on public bodies and their ability to meet any obligations arising from the retrospective provisions of the Bill was rejected.

Following that rejection, the Bill was unanimously passed. Royal Assent to the Bill is now anticipated, whereupon it will become an Act of the Scottish Parliament. Its provisions will thereafter come into force by way of Scottish ministerial regulations.

Stage two of the three-stage legislative progress of the Bill to retrospectively abolish limitation for childhood abuse cases was completed on 23 May 2017, after the Justice Committee of the Scottish Parliament considered proposed amendments. We summarise those and the Justice Committee’s decisions on them, as follows:

Definition of “abuse”: the Justice Committee agreed, unanimously, to an amendment to include, as an explicit part of the present non-exhaustive definition, “abuse which takes the form of neglect”.

Requirement for a report on resources: the Justice Committee rejected a proposed amendment that would have required Scottish Ministers to prepare a financial report on the likely impact on public bodies and their ability to meet any obligations arising from the prospective legislation.

Separately, the Scottish Child Abuse Inquiry has published more detail on phase one of its public inquiry hearings. Those will be held between 31 May and 12 July 2017. The agenda for the first week, 31 May – 2 June comprises: opening statements from a wider group of organisations than those presently designated as “core participants” in the Inquiry, followed by expert evidence on background and contextual research.

The opening statements will be heard from survivors groups, Quarriers, Barnardos and a host of Roman Catholic religious orders and governing institutions as well as the Church of Scotland.